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PCN 27 - Sutton/Carshalton parked in a special enforcement area, dropped curb
Parking Idiot
post Sat, 23 Jun 2018 - 10:40
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hi, I've been issued a ticket for parking alongside the dropping bit of a dropped curb. In Carshalton Surrey.

Any point in challenging it ? Or just pay.

Seems a bit unfair as there is no obstruction as far as I can tell.

Photographic evidence and PCN below. Thanks in advance for any help.








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post Sat, 23 Jun 2018 - 10:40
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Wretched Rectum
post Sun, 24 Jun 2018 - 23:16
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QUOTE (Brian Haytred @ Mon, 25 Jun 2018 - 00:12) *
Yes, s7, but what part of the LLA 2003 (or TMA) allows the council to issue a PCN?


section 86

QUOTE
9)The prohibition in this section is enforceable as if imposed—

(a)in Greater London, by an order under section 6 of the Road Traffic Regulation Act 1984 (c. 27),

(b)elsewhere in England and Wales, by an order under section 1 of that Act.


You'll find this then fits with sched 7 TMA 2004.
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Brian Haytred
post Sun, 24 Jun 2018 - 23:44
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So the PCN is issued under LLA 2003, sch and not the General Regulations.

(8)A penalty charge notice under this section must
(a)state—
(i)the grounds on which the council or, as the case may be, Transport for London believe that the penalty charge is payable with respect to the vehicle;
(ii)the amount of the penalty charge which is payable;
(iii)that the penalty charge must be paid before the end of the period of 28 days beginning with the date of the notice;
(iv)that if the penalty charge is paid before the end of the period of 14 days beginning with the date of the notice, the amount of the penalty charge will be reduced by the specified proportion;
(v)that, if the penalty charge is not paid before the end of the 28 day period, an increased charge may be payable;
(vi)the amount of the increased charge;
(vii)the address to which payment of the penalty charge must be sent; and
(viii)that the person on whom the notice is served may be entitled to make representations under paragraph 1 of Schedule 1 to this Act; and
(b)specify the form in which any such representations are to be made.


(4)The grounds referred to in sub-paragraph (1) above are—
(a)that the recipient—
(i)never was the owner of the vehicle in question;
(ii)had ceased to be its owner before the date on which the penalty charge was alleged to have become payable; or
(iii)became its owner after that date;
(b)that there was no—
(i)contravention of a prescribed order; or
(ii)failure to comply with an indication; or
(iii)contravention of the lorry ban order,under subsection (5) or (7) of the said section 4 as the case may be;
©that at the time the alleged contravention or failure took place the person who was in control of the vehicle was in control of the vehicle without the consent of the owner;
(d)that the recipient is a vehicle-hire firm and—
(i)the vehicle in question was at the material time hired from that firm under a vehicle hiring agreement; and
(ii)the person hiring it had signed a statement of liability acknowledging his liability in respect of any penalty charge notice issued in respect of the vehicle during the currency of the hiring agreement; or
(e)that the penalty charge exceeded the amount applicable in the circumstances of the case.
(5)Where the ground mentioned in sub-paragraph (4)(a)(ii) above is relied on in any representations made under this paragraph, those representations must include a statement of the name and address of the person to whom the vehicle was disposed of by the person making the representations (if that information is in his possession).
(6)Where the ground mentioned in sub-paragraph (4)(a)(iii) above is relied on in any representations made under this paragraph, those representations must include a statement of the name and address of the person from whom the vehicle was acquired by the person making the representations (if that information is in his possession).
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Wretched Rectum
post Sun, 24 Jun 2018 - 23:50
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I don't think so because the PCN refers to the TMA 2004 not the LLLAA 2003.
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Brian Haytred
post Sun, 24 Jun 2018 - 23:54
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The Gen Regs say:


4. Imposition of penalty charges
(1) Subject to the provisions of these Regulations a penalty charge is payable with respect to a
vehicle where there has been committed in relation to that vehicle—
(a) a parking contravention within paragraph 2 of Schedule 7 to the 2004 Act (contraventions
relating to parking places in Greater London);
SI 2007/3483 Page 4
(b) a parking contravention within paragraph 3 of that Schedule (other parking
contraventions in Greater London) in a civil enforcement area in Greater London;
or
© a parking contravention within paragraph 4 of that Schedule (parking contraventions
outside Greater London) in a civil enforcement area outside Greater London.


No mention of dropped kerbs or breach of a s6 RTRA order.

3(1)In Greater London there is a parking contravention in relation to a vehicle if it is stationary in circumstances in which any of the offences listed below is committed.
(2)The offences are—

(a)an offence under section 15 of the Greater London Council (General Powers) Act 1974 (c. xxiv) (parking on footways, verges, etc.);

(b)an offence under section 8, 11, 16(1) or 16C of the Road Traffic Regulation Act 1984 (contravention of certain traffic orders) of contravening—

(i)a prohibition or restriction on waiting of vehicles, or

(ii)provision relating to any of the matters mentioned in paragraph 7 or 8 of Schedule 1 to that Act (conditions for loading or unloading, or delivering or collecting);

©an offence under section 25(5) of the Road Traffic Regulation Act 1984 of contravening regulation 18 or 20 of the Zebra, Pelican and Puffin Pedestrian Crossings Regulations and General Directions 1997 (S.I. 1997/2400) (prohibition on stopping vehicles on or near pedestrian crossings);

(d)an offence under section 35A(1) of the Road Traffic Regulation Act 1984 (contravention of orders relating to parking places provided under section 32 or 33 of that Act);

(e)an offence under section 61(5) of the Road Traffic Regulation Act 1984 (parking in loading areas);

(f)an offence under section 19 of the Road Traffic Act 1988 (c. 52) (parking of HGVs on verges, central reservations or footways);

(g)an offence under section 21 of the Road Traffic Act 1988 (offences relating to cycle tracks) of parking a vehicle wholly or partly on a cycle track;

(h)an offence under section 36(1) of the Road Traffic Act 1988 (failure to comply with traffic sign) of failing to comply with a sign of a type referred to in—

(i)regulation 10(1)(b) of the Traffic Signs Regulations and General Directions 2002 (S.I. 2002/3113) (zig-zag lines relating to certain crossings), or

(ii)regulation 29(1) of those regulations (bus stop or bus stand markings).

(3)This paragraph does not apply to a contravention within paragraph 2 above (contraventions relating to parking places).


I think that The Gen Regs and Appeal regs do not apply, and that the council cannot serve a NtO in London. The PCN does not comply with Sch 1 LLA 2003.
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Wretched Rectum
post Mon, 25 Jun 2018 - 00:26
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QUOTE
(b)an offence under section 8, 11, 16(1) or 16C of the Road Traffic Regulation Act 1984 (contravention of certain traffic orders) of contravening—


QUOTE
8 Contravention of order under s. 6.

(1)Any person who acts in contravention of, or fails to comply with, an order under section 6 of this Act shall be guilty of an offence.
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hcandersen
post Mon, 25 Jun 2018 - 07:37
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The legal basis for enforcement of dropped footways under the TMA regime is here:

https://www.legislation.gov.uk/ukpga/2004/18/section/86

86(9) applies, therefore it is captured by s8 of the RTRA which is one of the road traffic contraventions specified in para. 3(2)(b) of Part 1 to Schedule 7 of the TMA.

And (not that it arises) if you want a real contextual conundrum emanating from the superior world of LG Acts, I doubt that anyone in the enforcement authority has the necessary delegated authority under the council’s constitution and scheme of delegation to officers to consider reps under the LLAA!
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Brian Haytred
post Mon, 25 Jun 2018 - 09:04
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QUOTE (Wretched Rectum @ Mon, 25 Jun 2018 - 01:26) *
QUOTE
(b)an offence under section 8, 11, 16(1) or 16C of the Road Traffic Regulation Act 1984 (contravention of certain traffic orders) of contravening—


QUOTE
8 Contravention of order under s. 6.

(1)Any person who acts in contravention of, or fails to comply with, an order under section 6 of this Act shall be guilty of an offence.




In that case the NoR reference to the LLA is fatal to it as it constitutes a PI.
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hcandersen
post Mon, 25 Jun 2018 - 09:55
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The OP has not received a NOR, they have received a written response which includes the authority's decision in respect of their consideration of a challenge to the PCN.

The legal test which has been applied is incorrect. However, such matters have been known to carry little weight at adjudication, particularly if rectified in a subsequent NOR and the discount re-offered.
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Parking Idiot
post Wed, 18 Jul 2018 - 12:27
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hi, sorry dropped the ball on this a bit as I've been ill.

Discount has expired so I might as well appeal anyway now. So I just need to wait for NOR to be sent to me and then draft a letter of
appeal is that how this works? Or I should be sending the appeal before the 28 days is up, which admittedly I've left quite tight.

Thanks

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PASTMYBEST
post Wed, 18 Jul 2018 - 12:39
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QUOTE (Parking Idiot @ Wed, 18 Jul 2018 - 13:27) *
hi, sorry dropped the ball on this a bit as I've been ill.

Discount has expired so I might as well appeal anyway now. So I just need to wait for NOR to be sent to me and then draft a letter of
appeal is that how this works? Or I should be sending the appeal before the 28 days is up, which admittedly I've left quite tight.

Thanks


no wait for the NTO


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Parking Idiot
post Wed, 18 Jul 2018 - 12:44
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QUOTE (PASTMYBEST @ Wed, 18 Jul 2018 - 13:39) *
QUOTE (Parking Idiot @ Wed, 18 Jul 2018 - 13:27) *
hi, sorry dropped the ball on this a bit as I've been ill.

Discount has expired so I might as well appeal anyway now. So I just need to wait for NOR to be sent to me and then draft a letter of
appeal is that how this works? Or I should be sending the appeal before the 28 days is up, which admittedly I've left quite tight.

Thanks


no wait for the NTO


OK great, so just wait for that to come in the post and then draft an appeal based on what's been posted above re: either
curb extends beyond what's permitted in legislation, or out of date legislation quoted on initial response from council.

Do you know how much time you generally get once the NTO comes ?
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Parking Idiot
post Sat, 28 Jul 2018 - 15:41
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I have received the NTO. Please see below.

Any help writing the appeal will be much appreciated. Assume for the timebeing I'm going at it from the dropped curb extending beyond
what is permitted by the legislation. Should I bother mentioning the BS on the response I got before ?




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Parking Idiot
post Thu, 16 Aug 2018 - 12:23
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Dear Sirs,

I am writing to make representations under option F (The Traffic Order was invalid).

In order that a contravention occurs, the dropped kerb has to be lowered for one of the
statutory reasons set out in s86 of the Traffic Management Act 2004.

The photographic evidence clearly shows that the dropped kerb extends far
beyond necessary for “assisting vehicles entering or leaving the carriageway
across the footway, cycle track or verge”. And clearly the position of the car does
not cause any obstruction for cars entering or leaving the carriageway. 1(a)(iii).

I’m assuming this is the reason, the previous correspondence I received quoted
The Transport for London Act 2003 and it was stated “On this occasion, the vehicle
was parked adjacent to a dropped kerb that was lowered to facilitate access to a
property”.

Therefore I would argue that the special enforcement area in this case is invalid.

Kind Regards

x

That's my draft. Any feedback appreciated.

Need to send it quite soon.
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hcandersen
post Thu, 16 Aug 2018 - 13:09
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OP, sorry but it’s nonsense!

A traffic order is not involved, this is a statutory prohibition (s86 TMA refers).

Your grounds are that:

The contravention did not occur.

1. I refer to your letter dated 22 June which states that the ‘Penalty is enforced under s(14)(4) of the London Local Authorities and Transport for London Act 2003. I also refer you to s3 of Part 1 of Schedule 7 to the Traffic Management Act which sets out the only offences which give rise to a parking contravention under that Act.

2. The LLA 2003 is not listed and therefore no offence under that Act (even presuming one was committed) would permit the authority to demand a penalty under the TMA. Consequently the PCN is invalid and must be cancelled.

3. If the authority do not cancel then they must state legal grounds for their decision(merely disagreeing being insufficient).

4. I would also draw your attention to the location of my car relative to the crossover and vehicular entrance to the property. It is clear that the width of the dropped footway considerably exceeds the width of the entrance and therefore the whole of the width of the dropped footway is not needed for the purpose of allowng access across the footway. If only that part of the footway which is necessary to permit a vehicle to enter the premises is considered then my vehicle was not parked in contravention or at most the incursion was trivial. The PCN must therefore be cancelled.

Procedural Impropriety
I refer you to the date of the PCN, 21 June, and the date of your written response, 22 June. Despite your assertion that you have ‘fully considered’ my challenge, this could not be the case as I would estimate that no more than a few minutes or at most a couple of hours could have been spent on this matter ....


Just some ideas.
I have not looked back over the detail of the widths and we haven’t seen your challenge or know how it was sent - this goes to the PI. But it’s something to knock around.




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Parking Idiot
post Thu, 16 Aug 2018 - 13:20
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QUOTE
Just some ideas.
I have not looked back over the detail of the widths and we haven’t seen your challenge or know how it was sent - this goes to the PI. But it’s something to knock around.


The challenge was me writing to ask "where are the pictures ?". They took that as an appeal ??

Thank you very much that looks great.
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PASTMYBEST
post Thu, 16 Aug 2018 - 13:23
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QUOTE (hcandersen @ Thu, 16 Aug 2018 - 13:09) *
OP, sorry but it’s nonsense!

A traffic order is not involved, this is a statutory prohibition (s86 TMA refers).

Your grounds are that:

The contravention did not occur.

1. I refer to your letter dated 22 June which states that the ‘Penalty is enforced under s(14)(4) of the London Local Authorities and Transport for London Act 2003. I also refer you to s3 of Part 1 of Schedule 7 to the Traffic Management Act which sets out the only offences which give rise to a parking contravention under that Act.

2. The LLA 2003 is not listed and therefore no offence under that Act (even presuming one was committed) would permit the authority to demand a penalty under the TMA. Consequently the PCN is invalid and must be cancelled.

3. If the authority do not cancel then they must state legal grounds for their decision(merely disagreeing being insufficient).

4. I would also draw your attention to the location of my car relative to the crossover and vehicular entrance to the property. It is clear that the width of the dropped footway considerably exceeds the width of the entrance and therefore the whole of the width of the dropped footway is not needed for the purpose of allowng access across the footway. If only that part of the footway which is necessary to permit a vehicle to enter the premises is considered then my vehicle was not parked in contravention or at most the incursion was trivial. The PCN must therefore be cancelled.

Procedural Impropriety
I refer you to the date of the PCN, 21 June, and the date of your written response, 22 June. Despite your assertion that you have ‘fully considered’ my challenge, this could not be the case as I would estimate that no more than a few minutes or at most a couple of hours could have been spent on this matter ....


Just some ideas.
I have not looked back over the detail of the widths and we haven’t seen your challenge or know how it was sent - this goes to the PI. But it’s something to knock around.


I.ve just read back through the thread, I was going to post something but am on holiday so no chance til later. As it happens HCa has come in with his usual good advice so go along the line he suggests


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Parking Idiot
post Thu, 16 Aug 2018 - 14:59
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Thanks, just sent it. Will let you know how it turns out.
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Parking Idiot
post Wed, 5 Sep 2018 - 19:45
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A good result! Thanks for the help. biggrin.gif



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